The following terms and conditions (“Terms”) apply to all Check Deposit Services (as defined below) accessed by a Unit client (“Client”) through the Unit platform and provided by Jack Henry & Associates, Inc. (“JHA”) through their SmartPay or Ensenta suite of products and services, as applicable. As a condition to Client’s use and integration of the Check Deposit Services in Client’s application or platform and making available the Check Deposit Services to Client’s customers (“End Users”), Client acknowledges and agrees to the terms and conditions set forth below.
Unit reserves the right to amend these Terms at any time and will notify Client of any such changes by posting the revised Terms on Unit’s website, available at www.unit.co ("Website"). Client should check these Terms on the Website periodically for changes. All changes shall be effective upon posting, and we will also revise the “last updated” date stated above. Client's continued use of the Check Deposit Services after any change to these Terms constitutes Client's agreement to be bound by any such changes. Unit may terminate, suspend, change, or restrict access to all or any part of the Check Deposit Services at any time without notice or liability in its sole discretion.
(a) “Check” has the meaning ascribed to such term in the Check Clearing for the 21st Century Act.
(b) “Image” means the image that results from an electronic scan of a Check by Client or End Users.
(c) "Loss” means any of the following, directly incurred by JHA: losses, liabilities, damages, claims, costs, expenses, and reasonable attorney fees actually paid to a third party.
(d) “Rules” means all laws, regulations and industry rules that apply to the SmartPay Services, including without limitation, the NACHA Operating Rules & Guidelines and associated regulations and guidelines, including those promulgated by any regional payment alliance associated with NACHA, the Check Clearing for the 21st Century Act and associated regulations and guidelines, and Federal Reserve System requirements.
(e) “SmartPay Services” means the SmartPay ACH processing services and/or the Check processing services provided by JHA to Client.
(f) “SmartPay Software” means the software programs owned by JHA and its licensors and provided by JHA with or incorporated as part of the SmartPay Services.
(g) “Substitute Check” has the meaning ascribed to such term in the Check Clearing for the 21st Century Act.
(h) “Terms” means these terms and conditions applicable to the SmartPay Services provided by JHA.
(i) “Transaction” means an ACH transaction and/or a Check transaction processed by JHA, as applicable.
(a) Client agrees to use the SmartPay Services in accordance with these Terms.
(b) In the event JHA provides SmartPay Services, the following terms will apply:
(i) All Checks deposited electronically by Client through use of the remote deposit capture SmartPay Services shall be subject to the following requirements: (i) The original Check will not be deposited through the remote deposit capture SmartPay Services more than once; (ii) All Checks will conform to the requirements of Client’s deposit agreement with its financial institution; and (iii) Client shall review and validate the accuracy and completeness of the Check Transaction data being captured, including but not limited to the amount of the Check and the legibility of the Image generated from use of the remote deposit capture SmartPay Services.
(ii) If Client utilizes a scanner to create Images which are delivered to JHA for processing, Client shall be solely responsible to ensure the quality, accuracy and completeness of the Image transmitted to JHA for processing. Client shall be solely responsible for the selection, use and operation of the scanner. Any scanner used by Client with the remote deposit capture SmartPay Services must meet the technical specifications for scanners published by JHA to be deemed compatible with the remote deposit capture SmartPay Services. JHA has certified certain scanners as compatible for use with the remote deposit capture SmartPay Services, and such scanners are available for purchase or lease by customers of JHA’s remote deposit capture SmartPay Services. Any purchase or lease of such scanners shall be transacted in a separate equipment purchase/lease agreement with JHA or JHA’s third-party provider.
(iii) Client shall be solely liable and responsible for all damages, losses, expenses and claims arising from any of the following: (i) Duplication of Images transmitted by Client to JHA through the remote deposit capture SmartPay Services; (ii) Alteration of Images not caused by the SmartPay Services or SmartPay Software; (iii) Deposit of Checks on accounts with insufficient funds, counterfeit Checks, fraudulent Checks, or Checks bearing unauthorized or forged endorsements; (iv) Acts of fraud, negligence or willful misconduct committed by employees or agents of Client in depositing Checks using the remote deposit capture SmartPay Services; (v) Hardware failure not caused by the SmartPay Services or SmartPay Software; and (vi) Client’s failure to properly store original Checks once the Image has been captured.
(iv) JHA is not responsible for printing any Substitute Checks which may be required by a financial institution to receive and process the Transactions. The party who prints a Substitute Check, and not JHA, shall be wholly liable for all applicable warranties and indemnification obligations under the Rules. JHA shall not be liable for any degradation of a Substitute Check not caused by JHA.
Client shall protect and maintain the confidentiality of all Confidential Information (as defined below) disclosed by JHA to Client under this Agreement and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any party whatsoever except for JHA. Client understands that any passwords and other credentials assigned to Client for access to the SmartPay Services constitute Confidential Information. Client shall take reasonable security procedures and practices to safeguard the Confidential Information; limit access to Confidential Information solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the SmartPay Services; and prohibit its employees and agents from initiating entries in the SmartPay Services without proper authorization and supervision and adequate security controls. Client acknowledges that no person from JHA will ever ask for any password and that JHA employees do not need and should not ask for Client’s password.
For purposes of these Terms, “Confidential Information” means, as the context requires the following, whether disclosed orally or in writing or by any other media: (a) these Terms, all information and materials provided by either party to the other party for its use in performing in its responsibilities under these Terms, including but not limited to information relating to the business, products, processing services, technology and systems of the other party; product documentation; the intellectual property, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, and inventions of the other party or its licensors; names and expertise of employees and consultants; SSAE18 and other audit reports; and all information and data relating to Client customers, including Client customer data; and other technical, business, financial, customer and product development plans, forecasts, strategies and information; (b) the trade secrets contained in the SmartPay Services and SmartPay Software, and (c) all information and materials, including customer and consumer nonpublic personal information and data, provided by either party to the other which is covered by a written agreement and obligation of confidentiality. Confidential Information shall not include information which: (i) is in or (through no improper action or inaction by the party receiving the information (the “Receiving Party”) or any employee or agent thereof enters the public domain; (ii) was rightfully in its possession or known by the Receiving Party prior to receipt from the party disclosing the information (the “Disclosing Party”); (iii) was rightfully disclosed to the Receiving Party by another person without restriction; (iv) was independently developed by or for the Receiving Party without access to and use of any Confidential Information of the disclosing Party; or (v) is disclosed as legally required pursuant to a court or regulatory agency order or subpoena, provided that the Disclosing Party is first given a reasonable opportunity to seek a protective order or other legal means for prohibiting or restricting the disclosure of its Confidential Information without appropriate confidentiality obligations.
Client shall indemnify, defend and hold harmless JHA from and against all Losses incurred by JHA arising out of (a) Client’s breach of these Terms or the Rules; (b) return of a Transaction due to incorrect or incomplete data or information provided by Client in the submission of the Transaction to JHA, a closed Client or End User account, or insufficient funds in a Client or End User account, and/or (c) fraudulent activity, wrongful or unauthorized use of the SmartPay Services, or submission of fraudulent or illegal Transactions by End User or a third party who has gained access to the SmartPay Services through the use of Customer’s or an End User’s password.
IN NO EVENT SHALL JHA BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except for actual, direct damages arising from any action or omission of action by JHA which constitutes the gross negligence or willful misconduct of JHA, JHA’s aggregate, cumulative liability to the Client for all claims of actual direct damages relating to the SmartPay Services, this Agreement, or the relationship between JHA and Client, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees paid by the Client to JHA or Unit (as the case may be) for SmartPay Services delivered under this Agreement during the three (3) month period preceding the origination of the claim giving rise to liability.
The SmartPay Services provided to Client may be terminated by JHA upon JHA’s written notice to Unit and/or Client due to: (a) Client’s material breach of these Terms that, to the extent capable of cure, remains uncured for 30 days after receipt of JHA’s notice; (b) Client’s fraudulent actions or omissions in connection with the SmartPay Services and/or these Terms; (c) Client becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights; (d) there is a change in the Rules that are applicable to the SmartPay Services which restricts or prohibits JHA from providing the affected SmartPay Services to Client or significantly increases JHA’s costs in providing the affected SmartPay Services to its customers generally; (e) Client’s business and/or assets are acquired by a competitor of JHA; or (f) the agreement between JHA and Unit is terminated or expired.
JHA is an intended third-party beneficiary to the Agreement. JHA has the right to directly enforce against Client the terms of such agreement that relate to the SmartPay Services. JHA shall have no responsibility or liability for Unit’s obligations under the Agreement.
In addition to the other terms defined elsewhere in the Agreement, the terms below shall have the following meanings when used in these Terms:
“Client Product(s)” means any equipment, switch, service, software release, version, or sub-version, developed, produced, published or distributed by Client in connection with the Ensenta Services and as installed on Remote Capture Devices.
“Deposit Transaction” means a transaction that allows a Check Deposit User to deposit a check(s) to the a Check Deposit User’s Account.
“Hardware” means the device used by a Check Deposit User to electronically scan and capture the paper check image.
“Non-Conforming Items” means an exception item including, without limitation, checks missing endorsements, postdated checks, and checks with inconsistent words and numbers, or other exception items as mutually agreed by JHA and Client (and as may be communicated by Unit to JHA or Client, as applicable, on the other’s behalf).
“Remote Capture Device” means a mobile phone camera or other scanning Hardware that provides the functionality of scanning a check, digitizing the image and sending it across a network.
“Check Deposit Services” means the Ensenta Services and any other remote check deposit services provided under these Terms from time to time.
“Check Deposit User” means an End User that utilizes a Check Deposit Service.
The “Ensenta Services” are the remote check deposit processing services provided by JHA subject to these Terms to consolidate deposit item images and information from Deposit Transactions acquired on a Remote Capture Device. Real-time posting may be facilitated through JHA’s APIs to various core banking systems.
The Ensenta Services includes the following features:
Client will load the following into the Ensenta Services: various identification information and data to support the Ensenta Services including, without limitation, Client main contact information, which shall include an e-mail address, Client Product information, and other information and data to be mutually identified and agreed upon between JHA and Client (and as may be communicated by Unit to JHA or Client, as applicable, on the other’s behalf).
All items listed above in this Section 2.B may be loaded into the Ensenta Services through the Ensenta Manager web-based module. Client Products may be loaded into the Ensenta Services by positing to the JHA FTP site, which shall be provided by JHA (or Unit on JHA’s behalf) to Client. Client Product information and Client contact information may also be loaded using an XML document, for which a schema will be provided upon Client’s request. If Client chooses to provide information through an XML document, then Client may either upload the XML document through the Ensenta Manager module or submit the XML directly via HTTPS, for which JHA (or Unit on JHA’s behalf) will provide specific instructions to Client upon request.
JHA will compile and store information regarding Check Deposit Users’ use of the Ensenta Services and will make that information available to Client through a secure website in the form of standard Ensenta Services reports. JHA will provide monthly reporting of the following data points: service description (including number of items processed), unit costs, and total costs. Upon termination of the Ensenta Services, all hosting or storage of data and provision of Ensenta Services shall cease and JHA shall provide a one-time download of data to Client in an industry-standard format.
JHA may aggregate information regarding usage of the Ensenta Services with information about use of the Ensenta Services by other customers of JHA, and may use such aggregated information to report on how the Ensenta Services are used by its customers generally. JHA shall not identify Client or any Client Products or Check Deposit Users to any third party (other than Unit and any applicable Bank Partner).
Check Deposit Users must use Ensenta Services with operating systems which are either certified by JHA to operate with the Ensenta Services or meet the minimum technical operating environment requirements published by JHA.
Internet-based and eLearning training of Client in the operation of the Ensenta Services may be made available by JHA at its then-current training fee rates.
Client and its RDC Users shall comply with these requirements of the Check Deposit Services:
JHA shall provide and implement the Ensenta Services set forth below in accordance with these Terms. Client shall provide reasonable assistance and information to JHA as necessary to provide and implement the Ensenta Services. JHA’s successful provision of the Ensenta Services depends on Client’s active cooperation. Such cooperation shall include, without limitation, Client’s provision of Client Products and information as detailed in Section 2.B of these Terms. JHA shall not have any obligation or liability to Client due to any non-performance by JHA directly attributable to Client’s breach of the Agreement, including Client’s failure to comply with these Terms.
Client will communicate with the Ensenta Services via mutually agreed secure networks. Client will make the deposit images, magnetic code line (MICR) data, and transaction tracing data available to the Ensenta Services through connection and transmission means mutually agreed upon by Client and JHA.
JHA, using a host simulator for integration purposes, will memo post Deposit Transaction information to its database. These deposit items and images will be available for immediate review and proofing via Ensenta EZAdmin.
JHA will create and send a X9.37 check file(s) to the indicated endpoint(s) approved by JHA.
Client and Check Deposit Users are solely responsible for the selection, use and operation of the Hardware used to capture the electronic image of the paper checks using the Ensenta Services, including the quality of the scanned check image results generated from the Hardware. Any Hardware used by Client and Check Deposit Users must meet the technical specifications for Hardware published by JHA.
If Client adds a cash letter configuration or requires a reconfiguration with regard to Client’s use of a JHA-provided check imaging solution, a fee for such service will be documented on a Client Service Order (CSO) or Client Work Request (CWR).
As between JHA and Client, Client or its licensors own all right, title and interest in and to the Client Products and related Client documentation, and in all proprietary rights related thereto, including but not limited to patent, copyright, trademark and trade secret rights, and subject to the limited licenses granted herein, no rights in the foregoing are transferred or licensed to JHA hereunder. JHA will not use, copy, modify, distribute, or provide any third-party access to the Client Products except as provided in these Terms. JHA will not decompile, disassemble or reverse engineer the Client Products.
As between Client and JHA, JHA or its licensors own all right, title and interest in and to the Ensenta Services and related documentation, and in all proprietary rights related thereto, including but not limited to patent, copyright, trademark and trade secret rights and the Confidential Information of JHA. Subject to the limited licenses granted herein, no rights in the foregoing are transferred or licensed to Client hereunder. Client will not use, copy, modify distribute, or provide any third-party access to the Ensenta Services (including their user interfaces) except as provided in these Terms. Client will not decompile, disassemble or reverse engineer the Ensenta Services.
Client grants to JHA a limited, non-transferable, worldwide, revocable license for the duration of the Term to access, use, host and distribute the Client Products as necessary for JHA to implement and provide the Ensenta Services as set forth herein. Client warrants that it has authority to grant JHA the license described in this section. Such license shall terminate and be of no further effect upon termination of these Terms and JHA shall discontinue the use of and delete, as appropriate under applicable law, all such Client Products upon such termination.
JHA grants to Client, a limited, non-exclusive, non-transferable, world-wide, royalty-free license to access and use the Ensenta Services and software within the scope and for the purposes described in these Terms. Such license shall terminate and be of no further effect upon termination of these Terms and Client shall discontinue the use of and return, as appropriate, all such software upon such termination.
Client and Check Deposit Users, as applicable, shall be solely liable and responsible for all Losses arising from any of the following which do not occur as a result of the fault of JHA:
Client and Check Deposit Users shall defend, indemnify and hold harmless JHA from all Losses which arise from the foregoing events and which do not occur as a result of the fault of JHA.
JHA reserves the right to audit Client’s records for the purpose of accurately rendering the correct fees due. JHA will charge and Client shall pay to JHA all fees which would have been due and payable to JHA from the commencement of JHA’s provision of the Ensenta Services.
JHA will maintain all applicable PCI DSS requirements to the extent that JHA (i) handles, has access to, or otherwise stores, processes, or transmits cardholder data or sensitive authentication data, or (ii) manages a cardholder data environment.
JHA, Client and Check Deposit Users shall comply with all Applicable Laws that apply to remote deposit check capture processing.
Client shall ensure that the material substance of the provisions of these Terms which are applicable to Check Deposit Users are included in Client’s written agreements with Check Deposit Users.
Client agrees that JHA shall be an intended third-party beneficiary of this Agreement, including these Terms. As such, JHA shall have the right to enforce directly against Client the terms of these Terms which relate to the provision of JHA’s Ensenta Services to Client and the ownership and protection of the intellectual property rights of JHA and its licensors in and to the Ensenta Services. Client acknowledges that JHA shall have no responsibility or liability with regard to Unit’s obligations to Client under this Agreement.
Although the Ensenta Services have been designed to identify Non-Conforming Items, (i) JHA cannot and does not guarantee or warrant that it will be able to correctly identify all Non-Conforming Items received; (ii) JHA assumes no liability for its inability to do so or for flagging items that the Ensenta Services incorrectly identify as potentially Non-Conforming Items; and (iii) Client acknowledges that it is impossible for JHA to guarantee the detection of all Non-Conforming Items and that the Ensenta Services may occasionally accept a Non-Conforming Item or reject a conforming item that appears non-conforming.